The FWC’s anti-bullying jurisdiction is unique on the international stage. In the United Kingdom and New Zealand, there are no specific legal provisions protecting employees from bullying. Although, some helpful observations can be made by considering similar grievance regimes in those jurisdictions.
In 2012, Advisory Conciliation and Arbitration Services (ACAS), an independent body in the UK, received approximately 90,000 complaints in which employees alleged the employer had breached specific legal protections, including unfair dismissal and discrimination. Conciliations and mediations were conducted, on a free and voluntary basis, in these cases. ACAS also provides training, guidance material and telephone advice to facilitate constructive relationships between employers and employees.
A report analysing the ACAS’ experience was commissioned by the FWC ahead of its anti-bullying jurisdiction (report available here). This report indicated that managers and complainants doubt the ability of mediation to resolve bullying complaints and suggested that agreements reached during mediation were often unsustainable or ineffective. Managers were hesitant participants in the ACAS process because they considered the discussions focussed on their management behaviour, rather than the complainant’s underlying performance issues. Complainants doubted that mediation would improve their managers’ behaviours. The report concluded that mediation was more likely to be effective if used at an early point in the dispute, when the parties did not have entrenched positions.
The UK experience was that telephone conciliations were suited to complaints where financial settlement was an option and where it was not necessary to repair fractured relationships (such as in unfair dismissal cases, where the employment relationship had already ended). This does not bode well for the FWC’s anti-bullying jurisdiction.
In New Zealand, the Employment Relations Authority deals with personal grievance applications, which include unfair dismissal, redundancy, and disadvantage claims (including bullying). In 2012, 366 claims proceeded to determination. The average cost to an employer in defending a grievance claim which had proceeded to determination was $12,445. Employers were able to recoup about half this amount if they were successful because in NZ, unlike Australia, it is usual for the unsuccessful party to contribute to the legal costs of the other.
The uptake of a jurisdiction that does not involve monetary compensation is yet to be seen: new bullying laws commence on 1 January 2014.